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Supreme Court agrees to hear first tribal jurisdiction case in years

Monday, June 15, 2015

A view of the U.S. Supreme Court. File photo by Indianz.Com

Over the objections of the Obama administration, the U.S. Supreme Court will hear a tribal jurisdiction case for the first time in seven years.

In an order list issued this morning, the justices granted a petition in Dollar General Corporation v. Mississippi Band of Choctaw Indians. The outcome will determine whether Dollar General, a publicly-traded company with $17.5 billion in revenues can avoid the jurisdiction of the Mississippi Band of Choctaw Indians.

The case is being closely watched across Indian Country. Although tribes and their advocates haven't submitted any briefs so far, they are are worried that the Supreme Court might issue another disastrous ruling.

"It puts this issue in front of a scary court in kind of a difficult way," John Dossett, the general counsel for the National Congress of American Indians, told tribal leaders in Washington, D.C., in February.

Dollar General opened its 11,000th store in Murfreesboro, Tennessee in 2012. Photo from Facebook

Dollar General operates a store on trust land on the reservation. The tribe issued a license to the business, whose manager is accused of sexually assaulting a minor who was working there as part of a youth training program.

The minor's parents sued Dollar General and the manager in tribal court, seeking at least $2.5 million in damages. The company, as a non-Indian entity, refused to submit to the court's jurisdiction.

Generally, tribes can't exercise authority over non-Indians. But the Supreme Court decision in Montana v. US lays out two exceptions -- one for "consensual relationships" and another for activities that threaten the political integrity, economic security or the health or welfare of a tribe.

Indianz.Com SoundCloud: 5th Circuit oral arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians

The 5th Circuit Court of Appeals determined that the "consensual relationships" exception applied to Dollar General.

"It is surely within the tribe’s regulatory authority to insist that a child working for a local business not be sexually assaulted by the employees of the business," the final March 2014 decision stated.

The company asked the Supreme Court to overturn the decision in June 2014. Briefing was complete in September of that year but the justices asked the Department of Justice for its views, a move that's fairly common these days in Indian law cases.

The brief was filed on May 12. Government attorneys said the 5th Circuit made the right call in the case.

"In the circumstances of this case, the tribal court has jurisdiction over the claims against petitioners because the allegedly tortious conduct occurred on tribal trust land and arose from a consensual relationship," the brief stated.

Dollar General filed a supplemental brief a week later. The company again called on the Supreme Court to hear the case, arguing that the government gave "no good answer" to the tribal jurisdiction issue being raised.

"Permitting tribal court jurisdiction over tort claims against nonmembers constitutes “a serious step,” given the Constitution’s premise of “original, and continuing, consent of the governed," the brief stated.

After considering the petition at a closed-door conference on June 4, the justices took extra time to review the matter. They came to an answer at a follow-up session last Thursday and agreed to hear the case.

Richard Guest of the Native American Rights Fund spoke to the National Congress of American Indians in February. Photo by Indianz.Com

The last time tribal jurisdiction came before the high court was in Plains Commerce Bank v. Long, a case from 2008. By 5-4 vote, the justices held that a non-Indian bank did not have to answer to a lawsuit filed by two members of the Cheyenne River Sioux Tribe despite having entered into a consensual agreement with the couple.

Since that ruling, tribes and their advocates have been working hard to keep cases away from the court. The efforts of the Tribal Supreme Court Project, a joint project of NCAI and the Native American Rights Fund, appear to have been working, at least until now.

"We were winning at the Supreme Court more than we were losing at the Supreme Court," Richard Guest of NARF said of the first few years of the project.

Since John G. Roberts took on the position of chief justice of the court in 2005, tribal interests have won just two cases and have lost nine, Guest said at NCAI in February. Up until 2012, tribes hadn't even won a single case, he added.

5th Circuit Decision:
Dollar General Corporation v. Mississippi Band of Choctaw Indians (March 14, 2014)
Dollar General Corporation v. Mississippi Band of Choctaw Indians (March 14, 2014)